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Backup firing rationale to beat discrimination claims

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in Employment Law,Firing,HR Management,Human Resources

Smart employers don’t leave anything to chance when it’s time to fire someone—especially when the employee facing termination thinks he might have a discrimination claim.

Instead of taking a chance that something said during the termination meeting will be misinterpreted, they make sure the meeting includes at least two company representatives—ideally a manager and an HR representative.

Here’s why: If the employee about to be terminated has already complained about discrimination, chances are he will see termination as retaliation. If he later claims that during the termination meeting a company rep insinuated that the earlier complaint was one reason for the firing, he will probably get a shot at a retaliation jury trial. But if the company has several witnesses, the case may be dismissed.

Recent case: Talaat Sabra, a Muslim Arab of Egyptian nationality, worked as a dental assistant for two months before he was fired for being disruptive and argumentative. But before he was terminated, he complained about alleged race and national-origin discrimination.

Sabra sued, alleging discrimination, hostile environment and retaliation. His first claims went nowhere, partly because the employer had good evidence he was difficult to work with. Several dentists complained about his attitude and rude conduct.

But Sabra also claimed that during his termination meeting, the firing manager specifically told him he was being discharged because he had filed discrimination complaints. That was enough to warrant a trial on retaliation. The employer will now have to prove the statements weren’t made—which is hard to do without a witness or other evidence. (Sabra v. Shafer, et al., No. 04-Civ-2759, SD NY, 2008)

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